The proposed Clean Water Restoration Act (CWRA) now under consideration in Congress, is "patently unconstitutional" and would "push the limits of federal power to an extreme not matched by any other law, probably in the history of this country."

So argues Pacific Legal Foundation Principal Attorney Reed Hopper. Hopper was the successful lead attorney at the U.S. Supreme Court in the landmark 2006 Clean Water Act case, Rapanosv. United States, which reined in overbroad federal regulation under the Clean Water Act.

Currently the Federal Clean Water Act applies to "navigable waters." The proposed Clean Water Restoration Act would remove the phrase "navigable waters" and replace it with the broader phrase "waters of the United States." "This change would expand the reach of federal land use regulation to an unlimited extent, subjecting every pond, puddle, and ditch to control from Washington, D.C.," said Hopper.

PLF’s Hopper refutes supporters’ "false claims" about CWRA

In response to what he calls "this breathtaking scheme for limitless federal land-use control," Reed Hopper has issued a list of "False Claims" about the legislation.

"The ‘Clean Water Restoration Act’ is misleadingly named; it’s a wolf in sheep’s clothing," said Hopper. "Contrary to its supporters’ claims, it wouldn’t ‘restore’ federal authority that was stripped away by court decisions. Rather, it would push federal power to new, unprecedented and unconstitutional extremes," said Hopper.

Hopper lists the top five "false claims" as follows:

False Claims About the Clean Water Restoration Act

(H.R. 2421, S. 787)

Claim 1: For over 30 years, the Army Corps of Engineers and Environmental Protection Agency have consistently interpreted the Clean Water Act to cover all waters in the United States.

Truth: The Corps and EPA have never claimed that the Clean Water Act authorized federal regulation of all waters in the United States. Federal regulations specifically exempt some waters from federal control, including certain wetlands.

Claim 2: It has always been Congress’ intent to regulate all waters in the United States through the Clean Water Act.

Truth: This claim is belied by the Act itself. The Clean Water Act expressly prohibits the discharge of pollutants to "navigable waters," not all waters, and explicitly recognizes the "primary responsibilities and rights of States" to protect local waters.

Claim 3

: Congress has the constitutional authority to regulate all waters in the United States.

Truth: The Clean Water Restoration Act would extend federal authority further than any bill in history and is patently unconstitutional. The U.S. Supreme Court has frequently declared that there are limits to federal authority and has ruled that federal regulation of all waters in the United States would create a constitutional conflict.

Claim 4: Although the Clean Water Restoration Act purports to regulate all waters in the United States, federal officials will not have authority to regulate backyard ponds and drainage ditches.

Truth: The Act speaks for itself. It would regulate "all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing ... ."

Claim 5: Unless the Clean Water Act is redefined to cover all waters in the United States, millions of acres of wetlands will be lost.

Truth: The Clean Water Act has never been the primary factor in wetlands protection. In its report Conserving America’s Wetlands 2008, the federal Council on Environmental Quality documented that between Earth Day 2004 and Earth Day 2008 approximately "3,600,000 acres of wetlands have been restored or created, improved, or protected" without relying on old command and control policies under the Clean Water Act. This was achieved primarily through cooperative agreements among federal, state, and private stakeholders. During this same period, according to CEQ, the Clean Water Act was credited for creating or protecting no more than 25,000 wetland acres per year.

Yesterday the Sixth Circuit issued its decision in United States v. Cundiff, a Clean Water Act civil enforcement action brought against Kentuckian father and son farmers. The basic contention was that the Cundiffs had converted polluted wetlands into cropland, but without the required Section 404 permit. The Cundiffs' property is adjacent to two small streams that flow into the Green River, which flows into the Ohio River. The district court had adopted the Johnson approach to Rapanos---namely, the government may establish jurisdiction under either the Scalia or Kennedy tests. The Sixth Circuit chose to avoid this vital question (just as the Fifth Circuit avoided it in Lucas), holding that, because jurisdiction could be affirmed under either test, it was not necessary to address the Rapanos split decision question.

Nevertheless, the decision is important for giving some additional content to the two Rapanos tests. For example, the court's discussion of the Scalia test makes clear that a surface water connection is necessary, but that the need for a "line drawing problem" between wetland and water may not be as important. Moreover, the court noted that, under the Scalia test, manmade tributaries can serve for jurisdiction.

The court also broke new ground in interpreting the Kennedy significant nexus test. The court's discussion of the relationship between the Cundiffs' property and the downstream navigable river leaves one with the impression that, in the court's view, any wetland that provides traditional wetland functions bears a significant nexus to the downstream navigable waterbody. In a footnote, the court observed that the presence of a significant nexus was confirmed by the fact that a poison deposited on the Cundiffs' property would eventually end up in the downstream navigable river. But this says nothing more than that a hydrological connection is present; and both Scalia and Kennedy agreed in Rapanos that jurisdiction could not be sustained on that basis alone.

Finally, the court seemed to make some rather obvious descriptive errors regarding the case law. For example, the court described the Ninth Circuit's Healdsburg decision as holding that the Kenendy test is usually, but not always, controlling. Also, the court read the Seventh Circuit's decision in Gerke as adopting the Johnson approach. Both of these readings are patently erroneous: the Seventh and Ninth Circuits (and the Eleventh as well) have adopted the Kennedy test alone as controlling.

After hundreds of thousands of dollars in attorneys fees and 14 years of court battles with no end in sight, Michigan's John Rapanos finally gave up his fight to defend himself against accusations that he illegally filled wetlands on his private property in violation of the Clean Water Act.

Despite winning his case in the U.S. Supreme Court, Rapanos recently settled it with the federal government. He agreed to pay fines and mitigation fees approaching $1 million. Federal prosecutors immediately hailed the settlement as a vindication of their virtually limitless power to regulate local wetlands nationwide.

But this settlement only demonstrates the inability of individual citizens to stand up for their rights against the overwhelming resources of Big Government.

The federal Clean Water Act prohibits the discharge of fill material into "navigable waters" and expressly recognizes the rights and responsibilities of state governments to protect and maintain local waters. Who could have foreseen that federal bureaucrats would stretch the language of the law to encompass mostly dry, inland wetlands lying in the middle of a Michigan cornfield?

Certainly not ordinary citizens like Rapanos, whose private property was 20 miles away from the nearest navigable waterway. No wonder he told federal officials to take a hike when they accused him of a federal crime for the ordinary activity of "moving sand from one end of his property to another," as one judge described it.

But federal bureaucrats in the Army Corps of Engineers and the Environmental Protection Agency are not used to being ignored. Rapanos was perceived as a threat to the agencies' ever-expanding claim of authority. So they sued Rapanos criminally and civilly.

The cases would turn on whether Clean Water Act jurisdiction extended to remote, inland wetlands with only a tenuous and intermittent connection to actual navigable waters. But federal regulators have never applied a consistent jurisdictional standard.

The U.S. Supreme Court has castigated the agencies for their ever-changing regulatory interpretations, and an oversight agency has documented that even officials in the same Army Corps office cannot agree on the scope of Clean Water Act jurisdiction. So bizarre is the federal regulation of wetlands that one judge likened it to the upside down logic of "Alice in Wonderland," where the placement of clean sand on dry land constitutes the illegal discharge of a pollutant into navigable waters.

To justify their suits, prosecutors argued the federal government had jurisdiction over Rapanos' property because the Clean Water Act extended federal authority to all waters that may be used by migratory birds. While the cases were pending, the U.S. Supreme Court invalidated the "migratory bird rule," finding the government's theory was contrary to the language of the law, inconsistent with prior federal interpretation and would likely exceed constitutional authority.

So federal officials claimed the Clean Water Act covered all waters (including any and all wetlands) that have some sort of hydrological connection with downstream navigable waters, no matter how remote or insignificant. In his defense, Rapanos argued this new legal theory exceeded both statutory and constitutional authority. The lower courts ruled for the government.

Although Rapanos had nearly exhausted his personal resources, he appealed his criminal conviction to the U.S. Supreme Court and was turned down. A year later, the high court accepted his civil case and in the 2006 decision Rapanos v. United States, a majority of the justices ruled in favor of Rapanos and for the second time invalidated the government's claim of jurisdiction over inland wetlands. In other words, the Supreme Court held that the federal government had acted illegally.

But the Supreme Court decided federal prosecutors could retry Rapanos using another jurisdictional standard. Unfortunately, the justices could not agree on the controlling legal standard. This meant federal officials could attempt to reprosecute Rapanos using one of two conflicting standards proposed by some justices or adopt a new theory.

This was the situation facing Rapanos when he agreed to settle the case and pay heavy fines and fees. It was clear that federal prosecutors were not going to give up, and it was equally clear that Rapanos was not playing on a level field. In almost all wetland jurisdiction cases, the lower courts have ruled for the government.

Unlike Rapanos, the federal government has unlimited resources to pursue any alleged violation. And it could perpetually retry the case. In other words, Rapanos could never really win, and the federal government could never really lose.

Rapanos's settlement is not an admission of guilt. Rather, it is an alarming demonstration of the erosive effect of heavy-handed government. When ordinary citizens can be beaten down so their only viable choice is to minimize their loses, by the very process designed to protect their rights, everyone loses.

The internal agency memos recently released by Representative Waxman detailing confusion in the EPA and the Corps enforcement division over CWA jurisdiction following Rapanos have been touted by the environmental community as evidence of the Bush Administration's anti-environment policies. See, e.g., this post from the Climate of Our Future Blog. The problem with this critique, other than the fact that it erroneously equates a principled federalism with anti-environmentalism, is that it lays the blame with the wrong actor. The confusion in CWA enforcement is because Rapanos itself is confusing. If, after all, the courts cannot agree on what the controlling Rapanos standard (compareUnited States v. Robison (11th Cir. 2008) (Kennedy test), United States v. Johnson (1st Cir. 2007) (both Scalia and Kennedy tests), & United States v. Chevron Pipe Line Co. (N.D. Tex. 2006) (Scalia test))---and no one has been accusing the judiciary of being anti-environment---then how can the agencies fairly be subject to the same charge?